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Chapter 6: Litigation Documents

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Chapter 6: Litigation Documents Chapter 6: Litigation Documents Chapter 6: Litigation Documents Chapter Outline: § 6.1 Legal Writing: Litigation Documents § 6.2 The Summons § 6.3 The Complaint § 6.4 Claims for Relief – Causes of Action § 6.5 The Complaint: General Allegations § 6.6 The Complaint: Establishing the Claims (Assignment) § 6.7 The Answer (Optional Assignment) § 6.8 Discovery o Assignment: Interrogatories o Assignment: Request for Admissions o Assignment: Request for Production § 6.9 Depositions o Assignment: Deposition Summary § 6.10 E-Discovery § 6.1 LEGAL WRITING: LITIGATION DOCUMENTS Litigation documents demonstrate the need for a paralegal to possess strong writing skills. These are documents created during the pre-trial, trial, and post-trial stages of the litigation process. The skills in creating these documents are transferable to many other areas of legal writing. The most common litigation documents include: Summons Interrogatories Complaints Request for Admissions Motions Request for Production of Documents Notices Request for Medical Examination Briefs (or Independent Medical Examination – IME) Subpoenas Deposition Summaries 143 Essential Skills for Paralegals: Volume II | Barber/Navallo Essential Skills for Paralegals: Volume II § 6.2 THE SUMMONS Process is the summons and complaint. Service of process, then, is the presenting of the summons and complaint to a defendant in a legal action. (Preparing a complaint is discussed on the following pages.) Technically, a summons is not a pleading. It is an instrument. However, it is usually placed in the pleading portion of a client’s file. Serving the summons and complaint fulfills one of the due process requirements of a lawsuit. Everyone has a due process right to know why and by whom he or she is being sued. This is called notice. If notice is not properly effectuated, the lawsuit will be dismissed. Jurisdictions have varying requirements for the summons and for the service of the summons. Check with your attorney, instructor, or other paralegals for examples and procedures in your jurisdiction. The typical requirements for successfully noticing a defendant are: 1. The original complaint and a copy of the summons are filed with the court. (This is usually done before process is served. However, some jurisdictions allow filing after service of the documents.) 2. The summons and complaint must both be served upon the defendant. 3. They must be served by someone who is not a party to the action and who is at least 18 years of age. 4. The affidavit of service, also called return of service, must be filled out by the person who serves the documents. 5. The affidavit of service, also called return of service, must be filed with the court. A paralegal may want to hire a process server to serve the documents. Look in the Yellow Pages, check online, or call information. The standard cost is $50 to $100 for a private server. In some jurisdictions, the county sheriff may serve legal documents. The cost is considerably less, but usually takes longer. 144 Essential Skills for Paralegals: Volume II | Barber/Navallo Chapter 6: Litigation Documents Service by publication is possible, but not usually recommended. First, you must continue to publish notice of the legal action for several weeks. The time varies by jurisdiction. Second, affidavits must be prepared along with a motion for default judgment. Your court rules will spell out what affidavits are required, but typically they involve attesting to your efforts to locate the defendant, what the action is about, and swearing to the amount of damages. Even after all of the above steps have been taken, some courts will still require personal service of documents. In any case, immediate filing of the affidavit of service with the court once the summons has been served is critical. This is called perfecting service. For the exercise that follows in this chapter, students will prepare a summons based upon their assigned client. About Jurisdiction The proper jurisdiction for filing a matter can be affected by all of the following: Whether the matter is a state or federal issue Where the plaintiff and defendant live (in personam) Where the litigated matter happened (in rem) The amount of damages being claimed The subject matter of the litigation A paralegal should never try to determine the court in which a matter will be filed. To do so would call for fundamental legal judgment, constituting an unauthorized practice of law. The attorney will determine the appropriate jurisdiction. 145 Essential Skills for Paralegals: Volume II | Barber/Navallo Essential Skills for Paralegals: Volume II Example § 6.2 | The Summons DISTRICT COURT OF CLARK COUNTY STATE OF CONFUSION JOHN DOE Plaintiff, vs. SUMMONS PHILLIP DUNCAN Defendant. ________________________________________ SUMMONS NOTICE! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING HEARD UNLESS YOU RESPOND WITHIN TWENTY DAYS. READ THE INFORMATION BELOW. TO THE DEFENDANT(S): A civil complaint has been filed by the plaintiff against you for the relief set forth in the complaint. 1. If you intend to defend this lawsuit, within twenty days after this summons is served on you, exclusive of the day of service, you must do the following: a. File with the clerk of this court, whose address is shown below, a formal written response to the complaint in accordance with the rules of the court, with the appropriate filing fee. b. Serve a copy of your response upon the attorney whose name is shown below. 2. Unless you respond, your default will be entered upon application of the plaintiff, and this court may enter a judgment against you for the relief demanded in the complaint, which could result in the taking of money or property or other relief requested in the complaint. 3. If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may be filed on time. 4. The state of Confusion, its political subdivisions, agencies, officers, employees, board members, commission members and legislators, each have 45 days after service of this summons within which to file an answer or other responsive pleading to the complaint. Issued at the direction of Sally Smooth CLERK OF COURT ___________________________ By:_____________________ Jude Justice 1212 W. North St. Attorneys for Plaintiff Central City, Confusion 146 Essential Skills for Paralegals: Volume II | Barber/Navallo Chapter 6: Litigation Documents § 6.3 THE COMPLAINT The complaint is the pleading that initiates a legal action. While the summons informs a defendant that he or she is being sued, the complaint explains why the suit is being initiated. There are five elements to a complaint: caption (or style) jurisdiction cause of action ad damnum clause subscription Caption (or Style) Each state has its own form of caption at the top of every pleading. Some states even have different forms for different counties. The federal courts have their own form of caption as well. Every caption will include: the title of the document the court where the matter is being filed the names of the parties (plaintiff and defendants) For this document, the title will be “Complaint.” Some attorneys prefer to be more specific in the title, such as Complaint for Negligence or Complaint for Breach of Contract. Ask what form the attorney prefers. If you are unsure how the court caption looks in your jurisdiction, ask the attorney for an example of a complaint filed previously in the same court. If that is not possible, go to the court clerk’s office and ask to see any file that is public record. Almost all documents filed with the court are public record, meaning you have a right to view the them. Copy the complaint from the file. The caption is sometimes referred to as the style. Jurisdiction Somewhere in the document, the court must be given a reason to hear the matter. In personam jurisdiction is jurisdiction over the person. In rem jurisdiction is jurisdiction over the controversy. There are many other forms of jurisdiction as well. While additional methods exist to establish jurisdiction, the most common manner is to simply state in the first two or three paragraphs at least one of the following: 147 Essential Skills for Paralegals: Volume II | Barber/Navallo Essential Skills for Paralegals: Volume II the address of the plaintiff (establishes in personam jurisdiction) the address of the defendant (in personam jurisdiction) address where the controversy took place (in rem jurisdiction) A common example of the jurisdictional paragraphs would be: 1. Plaintiff is now and at all times relevant has been a resident of El Paso County, Colorado. 2. Defendant is now and at all times relevant has been a resident of Kiowa County, Colorado. 3. The business the parties own is now and at all times relevant has been located in Denver County, Colorado. The statements above establish potential jurisdiction in three different counties: El Paso County could have in personam jurisdiction, Kiowa County could have in personam jurisdiction, and Denver County could have in rem jurisdiction. The plaintiff must choose the jurisdiction in which to file, but would likely choose his or her own county (El Paso above). Federal complaints often include a formalized heading titled Jurisdictional Statement followed by the same sort of paragraph described above. Cause of Action A cause of action is a legitimate reason to sue, also called claim for relief. Every complaint must have at least one cause of action. There are hundreds of possible claims. The attorney will determine what claims are to be included in the complaint. The following is just a few examples of some common claims: negligence negligence per se breach of contract intentional infliction of emotional distress misrepresentation For a cause of action to succeed, it must establish a prima facie case.
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